Case note: Riley Brown and Australian Broadcasting Corporation (Freedom of information)

Riley Brown and Australian Broadcasting Corporation (Freedom of information) [2025] AICmr 145 (30 July 2025[LH1] )

This recent decision of Freedom of Information (FOI) Commissioner, Toni Pirani (Commissioner), considers the legal professional privilege exemption provision contained in s 42 of the Freedom of Information Act 1982 (Cth) (FOI Act) and provides guidance on its application.

The decision under review was a decision of the Australian Broadcasting Corporation (ABC) to refuse access to documents relating to “particular and exceptional” circumstances warranting the payment of an ABC journalist’s legal costs by the ABC. A total of 13 documents were identified with:

• one document released in full
• two documents released in part, and
• the remaining 11 refused in full.

The ABC’s refusal to provide the Applicant with the requested documents was made under the following provisions of the FOI Act:

• s 42 (legal professional privilege) (LPP) 
• s 22 (irrelevant material), and
• s 47C (deliberative process).

The Applicant did not seek review of the ABC’s deletion of irrelevant material under s 22. Additionally, the ABC no longer pressed certain exemption claims over some of the material at issue thereby narrowing the material in dispute in the IC Review,

While noting that the ABC did maintain that certain material was conditionally exempt under s 47C, due to the extent of the deletions under s 42, as well as the content and context of the documents, the Commissioner considered that the issue to be decided in the IC review was the application of the s 42 exemption.

Legal Professional Privilege (LPP) exemption (s 42)

The Commissioner began by noting that a document will be exempt under s 42 of the FOI Act if it is of such a nature that it would be privileged from production in legal proceedings on the ground of LPP (s 42(1)) and LPP has not been waived (s 42(2)).

After considering the parties’ submissions, the Commissioner noted the relevant factors to consider in determining whether a communication is privileged at common law, as contained in the FOI Guidelines at paragraph [5.189]:

• whether there is a legal adviser-client relationship
• whether the communication was for the purpose of giving or receiving legal advice, or used in connection with actual or anticipated litigation
• whether the advice given is independent, and
• whether the advice given is confidential.

The Commissioner then considered the material at issue.

Communications with internal lawyers

Certain material contained communications between ABC staff and the ABC’s in-house legal team. In its submissions the ABC submitted that it has been well established that an adviser-client relationship can exist between an agency and their in-house legal staff.

The Commissioner considered that it was apparent from the content and context of the communications that they were “created for the dominant purpose of giving confidential legal advice relating to actual or anticipated litigation” and accepted that the relationship between the ABC and its in-house legal team constituted “an independent lawyer-client relationship”.

Communications with external lawyers

Certain other material at issue contained communications between the ABC and the ABC journalist’s independent external lawyers. The Commissioner was satisfied that these communications were relating to actual or anticipated litigation. Documents of this nature attract “litigation privilege” if they are intended to be confidential. The Commissioner was satisfied based on the context and nature of these documents, as well as some explicit statements contained within them declaring confidentiality, that they were intended to be confidential and as such were exempt under s 42.

Owing to the common interest of the ABC journalist and the ABC in the matter, the relevant material maintained its confidentiality despite aspects of the advice being shared with the ABC.

One of the documents contained draft legal advice from independent external lawyers to the ABC. The Commissioner was satisfied this document attracted LPP.

Waiver of legal privilege

In their submissions, the Applicant contended that any LPP attaching to the documents had been waived. This argument was based on the ABC’s then managing director disclosing information about the matter to which the documents related through Senate Estimates’ responses, and in other public statements.

In response to this, the ABC submitted that information divulged at Senate Estimates cannot be considered due to the operation of s 16(3)(c) of the Parliamentary Privileges Act 1987 (Cth) (PP Act). The Commissioner agreed with this submission and was satisfied that “responses to Senate estimates are included in Parliament as defined in s 16(2) of the PP Act “and therefore could not be considered.

Ultimately, it was not apparent to the Commissioner that LPP had been waived regarding any of the material at issue.

Key takeaways

• The relationship between an entity and their in-house legal team can constitute a legal adviser-client relationship attracting LPP for relevant material. In the context of an information request, an exemption on such material can be claimed under s 42 of the FOI Act.
• A disclosure that is subject to parliamentary privilege, such as a statement provided to Senate Estimates, cannot be used to challenge an exemption claim under s 42 of the FOI Act on the basis that LPP was waived by the disclosure, due to the application of 16(3)(c) of the PP Act.